Can my neighbor fly his drone over my home?

Editor’s note: This week’s column was written by my associate Michael Tarwater, Jr.

Q. I live in a single-family homeowners’ association in North Carolina and recently saw one of my neighbors flying a drone with a camera attached above my property. Can’t my HOA regulate this?

A. The short answer: it’s too early to tell. Drones are more affordable than ever and because of that, there are more drone enthusiasts than ever before. Commercial drones (drones used for a commercial purpose) are already regulated by the Federal Aviation Administration (FAA), and the N.C. General Assembly is poised to jump into the fray.

Session Law 2015-232, which requires permits for commercial operation of drones, allows for the State to approve or disapprove the procurement/operation of a drone by agents/agencies of the State or a political subdivision, and provides that a knowledge test for operating drones shall be implemented prior to any state or local agency procuring or operating any drones. There are a lot of uses for commercial drones, even in the context of homeowners’ associations. Property managers, once approved by the FAA and any state or local body, would be able to fly drones above condominium- or HOA-owned buildings to inspect for maintenance or repair needs, and to use the drones to look for violations of community restrictions.

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Hobby drones, which is most likely what your neighbor was flying, are currently regulated only by the FAA. The FAA currently requires hobbyists to: (a) fly below 400 feet and remain clear of surrounding obstacles; (b) remain well clear of and not interfere with manned aircraft operations; (c) not fly within 5 miles of an airport without the airport’s prior approval; (d) not fly near stadiums or people; (e) not operate drones weighing more than 55 pounds; and (f) always keep the drone in a line of sight. Drone operators who violate these regulations could be fined for endangering other people or aircrafts. See https://www.faa.gov/uas/model_aircraft/

Drones have lost control and fallen and this is a serious safety concern. Additionally, there have been reports of people shooting drones out of the sky. Many of these hobby drones contain cameras, both for still photos and videos, and they can be flown over private property otherwise not visible from the ground or used to peek in windows – both of which create serious privacy issues.

With few laws governing drone usage, it is too early to tell if single-family homeowners’ associations have the right to govern drone use. This could be something where the HOA is not involved because the HOA has no legal grounds to protect individual owner’s privacy, making it an owner vs. owner issue. Another question that needs to be answered is whether HOAs can create regulations regarding the airspace over individually owned lots (this would be less of an issue for townhomes and condominiums).

My advice to my HOA clients is not to jump to hasty conclusions. We do not know whether HOAs should or could govern the usage of drones. There are property owners who want to ban drones outright and there are owners who do not want to ban drones at all. I think a more measured approach is somewhere in the middle and starts by HOAs adopting language about drones in their governing documents which would give the HOA board the flexibility to adopt the rules and regulations in the future.

Charlotte attorney Michael Hunter represents community and condominium associations for the firm of Horack Talley. Email questions to home@charlotteobserver.com. Not every question receives a reply. Find his blog at www.CarolinaCommonElements.com.